Forget flexible, think rigid

Whitehall supplies get-out clauses for flexible work.

Whitehall supplies get-out clauses for flexible work

The government's new rules on flexible working came into force on 6 April via numerous different enabling regulations.

Many employers will mistakenly believe that the regulations require them to allow their staff to work flexibly if requested to do so. This is not the case. The regulations actually set out a wide range of valid reasons for a request to be refused, including detrimental impact on quality or performance, additional cost, problems reallocating work and recruitment difficulties.

The main impact of the regulations, in the short term at least, will simply be to require employers to enter into formal dialogue with qualifying employees who make requests for flexible working, by following a fairly rigid procedure. Given the wide scope for legitimate refusal allowed by the regulations, employers appear more likely to be penalised for failure to follow this procedure than for actually refusing the request.

By way of an example, the main form of flexible working many employees will want is home working. The cost of the IT infrastructure to support this has been expensive in the past, but the costs are falling and most medium and large organisations will be in a position to make the necessary investment. The employer's equation can take into account both the financial cost and also any impact on performance and quality of work.

At the very basic level the company would need to provide a dial-in remote access service, although this is unlikely to meet operational needs in terms of quality and performance. ISDN has been an option in the past, but is relatively expensive. One of the best solutions would be a virtual private network using browser-based software for e-mail, documents and other applications.

Home working also brings additional health and safety costs for employers, as they remain legally obliged to provide a safe working environment, including dealing with workstation and display screen issues in the home workplace as well as the workplace. Therefore, although the position is likely to change as the technology improves and remote working takes hold in society, at present most employers will find it relatively easy to justify refusing home working on costs and performance grounds.

However, even if the employer's reasons for refusal are watertight, a simple failure to comply with the set procedures can carry a penalty of up to £2,080, which is eight weeks' pay capped at the statutory maximum level of £260 per week. Treating employees to their detriment (including dismissing them) as a result of making such a request is likely to result in an automatically unfair dismissal claim. We are also likely to see constructive dismissal claims arising out of failures by employers to follow the statutory procedure.

With this in mind, one really must question whether the aim of the regulations is simply to create a formalised talking shop and a pointless and unnecessary system of penalties for employers. Instead of creating significant new rights for employees to be able to work flexibly, the regulations do little other than to introduce yet another basis for employees to make purely "procedural" claims against employers, regardless of the overall situation at hand.

Employers should also be aware that the regulations are still only part of the overall picture and that they do nothing to change the existing laws on sex discrimination.

It remains the case that, regardless of the procedure followed, if an employee returning from maternity leave (or otherwise with childcare responsibilities) is turned down for flexible working without good business reasons for the refusal, a valid claim of indirect sex discrimination can still arise.

Matthew Tom is a solicitor in the employment and resourcing department at Tarlo Lyons

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